Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                  Introduced House Bill 5562
  By Delegates Barnhart, Criss, Anderson, Zatezalo,
                 Westfall, and Hott [Introduced February 12, 2024; Referred to the Committee on the Judiciary]
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  A BILL to amend and reenact §36-1A-1, §36-1A-2, §36-1A-5, §36-1A-6, and §36-1A-7 of the Code
            of West Virginia, 1931, as amended, all relating to the repeal of the common law rule
            against perpetuities by extending it to 1,000 years for all trusts.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE         1A.     UNIFORM        STATUTORY           RULES       AGAINST        PERPETUITIES.
     §36-1A-1.                 Statutory rule against perpetuities.
            (a) Except as provided in subsection (e) of this section, a nonvested property interest is
  invalid unless:
            (1) When the interest is created, it is certain to vest or terminate no later than 21 years after
  the death of an individual then alive; or
            (2) The interest either vests or terminates within 90 years after its creation.
            (b) Except as provided in subsection (e) of this section, a general power of appointment not
  presently exercisable because of a condition precedent is invalid unless:
            (1) When the power is created, the condition precedent is certain to be satisfied or become
  impossible to satisfy no later than 21 years after the death of an individual then alive; or
           (2) The condition precedent either is satisfied or becomes impossible to satisfy within 90
 years after its creation.
           (c) Except as provided in subsection (e) of this section, a nongeneral power of appointment
 or a general testamentary power of appointment is invalid unless:
           (1) When the power is created, it is certain to be irrevocably exercised or otherwise to
 terminate no later than 21 years after the death of an individual then alive; or
           (2) The power is irrevocably exercised or otherwise terminates within 90 years after its
 creation.
           (d) In determining whether a nonvested property interest or a power of appointment is valid
 under the provisions of this section, the possibility that a child will be born to an individual after the
 individual’s death is disregarded.
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        (e) As to any trust administered by a private trust company pursuant to §31I-1-1 et seq. of
 this code created on or after July 1, 2023 2024, this subsection article shall apply to a nonvested
 property interest or power of appointment contained in a trust by substituting 1,000 years in place
 of "90 years" in each place such term appears in this section article, unless the terms of the trust
 expressly require that all beneficial interests in the trust vest or terminate within a lesser period.
     §36-1A-2. When nonvested property interest or power of appointment is created.
         (a) Except as provided in subsections (b) and (c) of this section and in subsection (a),
  section five of this article, the time of creation of a nonvested property interest or a power of
  appointment is determined under general principles of property law.
         (b) For purposes of this article, if there is a person who alone can exercise a power created
  by a governing instrument to become the unqualified beneficial owner of (1) a nonvested property
  interest or (2) a property interest subject to a power of appointment described in subsections (b) or
  (c), section one of this article, the nonvested property interest or power of appointment is created
  when the power to become the unqualified beneficial owner terminates.
         (c) For purposes of this article, a nonvested property interest or a power of appointment
 arising from a transfer of property to a previously funded trust or other existing property
 arrangement is created when the nonvested property interest or power of appointment in the
 original contribution was created.
        (d) For the purposes of this article, if a nongeneral or testamentary power of appointment is
 exercised to create another nongeneral or testamentary power of appointment, every nonvested
 property interest or power of appointment created through the exercise of such nongeneral or
 testamentary power of appointment is considered to have been created at the time of the creation
 of the first nongeneral or testamentary power of appointment.
     §36-1A-5.              Prospective application Application.
         (a) Except as extended by subsection (b)(c) of this section, this article applies to a
  nonvested property interest or a power of appointment that is created on or after the effective date
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  of this article July 1, 2024. For purposes of this section, a nonvested property interest or a power of
  appointment created by the exercise of a power of appointment is created when the power is
  irrevocably exercised or when a revocable exercise becomes irrevocable.
            (b) This article also applies to a power of appointment that was created before July 1, 2024,
  but only to the extent that it remains unexercised on July 1, 2024.
            (b)(c) If a nonvested property interest or a power of appointment was created before the
  effective date of this article and is determined in a judicial proceeding, commenced on or after the
 effective date of this article, to violate this state's rule against perpetuities as that rule existed
 before the effective date of this article, a court upon the petition of an interested person may reform
 the disposition in the manner that most closely approximates the transferor's manifested plan of
 distribution and is within the limits of the rule against perpetuities applicable when the nonvested
 property interest or power of appointment was created.
     §36-1A-6.                                                Short title.
            (a) This article may be cited as the "West Virginia Uniform Statutory Rule Against
  Perpetuities."
     §36-1A-7.              Uniformity of             application and construction.
            (a) With respect to any matter relating to the validity of an interest within the rule against
  perpetuities, unless a contrary intent appears in the instrument, as a rule of construction it shall be
  presumed that the transferor of the interest intended that the interest be valid.
            (b) The provisions of this article shall be applied and construed to effectuate its general
  purpose to make uniform the law with respect to the subject of this article among states enacting it.
               NOTE: The purpose of this bill is to repeal the common law rule against perpetuities by
               prospectively extending its application to all trusts to 1,000 years. Repeal is intended to
               modernize West Virginia trust law and permit multi-generational "dynasty trusts" to assist in
               preservation of wealth of West Virginia families, which will benefit the state financially. This bill extends to all trusts the repeal of the rule against perpetuities which was made applicable in 2023 only to a limited set of trusts administered by a Private Trust Company as
               provided in H.B. 3272 (passed February 22, 2023).
               Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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Statutes affected: 
Introduced Version: 36-1A-1, 36-1A-2, 36-1A-5, 36-1A-6, 36-1A-7